Exhibit 99.11
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PURCHASE AGREEMENT
dated as of June 21, 1999
by and among
GENERAL MOTORS CORPORATION,
XXXXXX ELECTRONICS CORPORATION
and
AMERICA ONLINE, INC.
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TABLE OF CONTENTS
Page
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I. DEFINITIONS....................................................... 1
II. THE PURCHASE OF PREFERENCE STOCK.................................. 5
2.1 Purchase of Preference Stock................................. 5
III. REPRESENTATIONS AND WARRANTIES OF INVESTOR........................ 5
3.1 Investment Intention......................................... 5
3.2 Financial Capability......................................... 6
3.3 Corporate Existence.......................................... 6
3.4 Corporate Power; Authorization; Enforceable Obligations...... 6
3.5 Brokers...................................................... 7
IV. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY........... 7
4.1 Authorized and Outstanding Shares of Capital Stock........... 7
4.2 Authorization and Issuance of Preference Stock............... 7
4.3 Securities Laws.............................................. 8
4.4 Corporate Existence; Compliance with Law..................... 8
4.5 Corporate Power; Authorization; Enforceable Obligations...... 8
4.6 SEC Filings; Financial Statements............................ 9
4.8 Brokers...................................................... 10
V. COVENANTS......................................................... 10
5.1 Additional Agreements; Commercially Reasonable Efforts....... 10
5.3 Transfers of Shares.......................................... 11
5.4 Restrictive Legends.......................................... 13
5.5 Purchase Rights.............................................. 13
5.6 Market Valuation Protection in Event of Certain Conversions.. 14
VI. MISCELLANEOUS..................................................... 16
6.1 Notices...................................................... 16
6.2 Binding Effect; Assignability; Benefits...................... 17
6.3 Amendment.................................................... 17
6.4 Section and Other Headings................................... 17
6.5 Severability................................................. 17
6.6 Interpretation............................................... 17
6.7 Counterparts................................................. 18
6.8 Governing Law................................................ 18
6.9 Expenses..................................................... 18
6.10 Confidentiality.............................................. 18
6.11 Entire Agreement............................................. 19
Exhibits
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Exhibit A Certificate of Designations
PURCHASE AGREEMENT
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PURCHASE AGREEMENT, dated as of June 21, 1999 by and among GENERAL
MOTORS CORPORATION, a Delaware corporation ("Parent"), XXXXXX ELECTRONICS
CORPORATION, a Delaware corporation and a wholly owned subsidiary of Parent
("Subsidiary"), and AMERICA ONLINE, INC., a Delaware corporation ("Investor").
W I T N E S S E T H
WHEREAS, Parent has agreed to issue and sell, and Investor has agreed
to purchase, upon the terms and conditions hereinafter provided, shares of
Parent's Series H 6.25% Automatically Convertible Preference Stock, which shall
have the rights, powers and preferences provided hereby (the "Preference
Stock");
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
I. DEFINITIONS
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"$1-2/3 Common Stock" has the meaning set forth in Section 4.1.
"Affiliate" means, with respect to any Person, any other Person who
directly or indirectly is in control of, is controlled by or is under common
control with, such Person.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in the State of New York
or the State of California.
"Certificate of Designations" means the Certificate of Designations to
Parent's Restated Certificate of Incorporation, as amended, setting forth the
rights, powers and preferences of the Preference Stock in accordance herewith.
"Class H Dividend Base" means the denominator of the fraction used for
purposes of computing the "Available Separate Consolidated Net Income of Xxxxxx"
pursuant to the Restated Certificate of Incorporation of Parent, as amended
through the date hereof.
"Closing Price" of a share of Common Stock on any date of
determination means the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of such share on the NYSE on such date
or, if the Common Stock is not listed for trading on the NYSE on any such date,
as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if it is not so
listed on a United States national or regional securities exchange, as reported
by the Nasdaq Stock Market, or, if it is not so reported, the last quoted bid
price for the
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of a share of Common Stock on such date as
determined by a nationally recognized independent investment banking firm
retained for this purpose by Parent.
"Common Stock" means the Class H Common Stock, par value $0.10 per
share, of Parent.
"Confidential Information" means any information relating to or
disclosed in the course of the negotiation or performance of any of the
Transaction Documents, which is or should be reasonably understood by the
receiving party to be confidential or proprietary to the disclosing party,
including, but not limited to, the material terms of any Transaction Document,
any working materials of any of the parties, information about authorized users
of AOL, DIRECTV or DirectPC, technical processes and formulas, source codes,
product designs, sales, cost and other unpublished financial information,
product and business plans, projections and marketing data. "Confidential
Information" will not include information (a) already lawfully known to or
independently developed by the receiving party, (b) disclosed in published
materials, (c) generally known to the public or (d) lawfully obtained from any
third party who was not under an obligation to maintain the confidentiality of
such information. The existence of any and all of the Transaction Documents and
the terms hereof shall be deemed Confidential Information, provided that the
Parties shall be able to disclose the existence of the Transaction Documents to
third parties only as reasonable necessary to further a specific purpose of such
Transaction Document and subject to a non-disclosure agreement no less
restrictive than the confidentiality provisions herein.
"Conversion Shares" means the shares of Common Stock issuable upon
conversion of the Preference Stock.
"DTV" means DIRECTV, Inc., a California corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all rules and regulations promulgated thereunder.
"Fair Market Value" on any day means the average of the daily Closing
Prices of a share of Common Stock on the five (5) consecutive Trading Days
ending not later than the earlier of the day in question or the day before the
"ex" date with respect to any issuance or distribution in respect of which Fair
Market Value is to be computed. The term "ex date," when used with respect to
any issuance or distribution, means the first day on which the Common Stock
trades regular way, without the right to receive such issuance or distribution,
on the exchange or in the market, as the case may be, used to determine that
day's Closing Price.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time.
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"HNS" means Xxxxxx Network Systems, a division of Subsidiary.
"Investor" has the meaning set forth in the recitals.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Master Agreement" means the Master Agreement, dated as of June 21,
1999, among Investor, DTV, Subsidiary, and HNS.
"Material Adverse Effect" means, with respect to any party hereto, a
material adverse effect on the business, affairs, assets, operations or
financial condition of such party and its subsidiaries, taken as a whole (other
than those arising from general economic or industry-wide events or occurrences)
or on the ability of such party to perform in all material respects its material
obligations under this Agreement; provided, however that the term "Material
Adverse Effect" shall exclude a material adverse effect arising as a result of
the transactions contemplated by this Agreement, including without limitation
the announcement thereof.
"NYSE" means the New York Stock Exchange.
"Parent" has the meaning set forth in the recitals.
"Permitted Transferee" has the meaning set forth in Section 5.3(a).
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
"Preference Stock" has the meaning set forth in the recitals.
"Public Offering" means an underwritten public offering registered
under the Securities Act.
"Restricted Shares" has the meaning set forth in Section 5.3(a).
"SEC" means the U.S. Securities and Exchange Commission, or any
successor thereto.
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"SEC Documents" has the meaning set forth in Section 4.6.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations promulgated thereunder.
"Share Delivery Date" means June 24, 1999.
"Share Price" means the average of the Closing Prices per share of
Common Stock on June 16, June 17, June 18, June 21, June 22 and June 23, 1999.
"Trading Day" means a day on which the Common Stock (a) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (b) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security.
"Transaction Documents" means this Agreement, the Certificate of
Designations, the Registration Rights Agreement, dated as of June 21, 1999,
between Parent and Investor, the Master Agreement and the Venture Agreements.
"Transfer" has the meaning set forth in Section 5.3(a).
"Venture Agreements" means (i) the Satellite Access Services and
Marketing Agreement, dated as of June 21, 1999, between Investor and HNS, (ii)
the Set Top Box Development, Distribution and Co-Marketing Agreement, dated as
of February 9, 1999, as amended by the First Amendment thereto dated as of June
21, 1999, among Investor, HNS and DTV, (iii) the Marketing Agreement, dated as
of June 21, 1999, between Investor and DTV (such three agreements being the
"Clause I Thru III Agreements"), (iv) the DIRECTV Sales Agency Agreement, dated
as of June 21, 1999, between Investor and Subsidiary, (v) the Media Buy
Agreement (as defined in the Master Agreement), (vi) the Intellectual Property
License Agreement, dated as of June 21, 1999, between Investor and HNS and (vii)
the Electronic Program Guide and Interactive Services Agreement dated as of June
21, 1999 (the "Clause VII Agreement").
References to this "Agreement" shall mean this Purchase Agreement,
including all amendments, modifications and supplements and any exhibits or
schedules to any of the foregoing, and shall refer to the Agreement as the same
may be in effect at the time such reference becomes operative.
Any accounting term used in this Agreement shall have, unless
otherwise specifically provided herein, the meaning customarily given such term
in accordance with GAAP, and all financial computations hereunder shall be
computed, unless otherwise specifically provided herein, in accordance with GAAP
consistently applied. That certain terms or computations are explicitly modified
by the phrase "in accordance with GAAP" shall in no way be construed to limit
the foregoing. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole, as the
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same may from time to time be amended, modified or supplemented, and not to any
particular section, subsection or clause contained in this Agreement. Wherever
from the context it appears appropriate, each term stated in either the singular
or plural shall include the singular and the plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the feminine
and the neuter.
II. THE PURCHASE OF PREFERENCE STOCK
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2.1 Purchase of Preference Stock. Subject to the terms and conditions
set forth in this Agreement, Investor subscribes for and agrees to purchase from
Parent, and Parent agrees to issue and sell to Investor, on the Share Delivery
Date, a number of shares of Preference Stock equal to the quotient obtained by
dividing (i) the quotient obtained by dividing (A) $1,500,000,000 by (B) the
Share Price by (ii) ten (10). The aggregate purchase price for the Preference
Stock subscribed for by Investor is $1,500,000,000. On the Share Delivery Date,
Investor shall pay such $1,500,000,000 purchase price in full by wire transfer
of immediately available funds to an account of Parent designated by Parent.
2.2 Delivery of Shares. On the Share Delivery Date, Parent will (i)
execute and file with the Secretary of State of the State of Delaware a
Certificate of Designations to create the Preference Stock substantially in the
form of Exhibit A attached hereto (with all blanks therein filled appropriately
as described in the last sentence of this paragraph) and (ii) deliver to
Investor a certificate or certificates (or evidence of book entry ownership, at
Parent's option) representing the number of shares of Preference Stock
determined pursuant to Section 2.1, registered in the name of Investor. Such
certificates or book entry shall be dated June 24, 1999. The Certificate of
Designations as filed with the Secretary of State shall state (i) an annual
dividend rate for purposes of calculating Preferential Dividends (as defined in
the Certificate of Designations) in Section 3(i) thereof equal to 6.25% of the
Share Price multiplied by ten (10), (ii) a liquidation preference per share for
purposes of Section 4(i) thereof equal to the Share Price multiplied by ten
(10), (iii) a "Threshold Price" (as such term is used in the definition of
"Exchange Rate" in Section 13 thereof) equal to 124% of the Share Price, (iv) an
"Initial Price" (as defined in Section 13 thereof) and stated value equal to the
Share Price multiplied by ten (10) and (v) the number of authorized shares of
Preference Stock equal to the number of shares of Preference Stock determined
pursuant to Section 2.1.
III. REPRESENTATIONS AND WARRANTIES OF INVESTOR
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Investor makes the following representations and warranties to Parent
and Subsidiary as of the date hereof:
3.1 Investment Intention. Investor is purchasing the Preference Stock
for its own account, for investment purposes and not with a view toward, or for
the purpose of, the resale or distribution thereof. In addition to the
restrictions contained in Section 5.3, Investor will not, directly or
indirectly, offer, transfer, sell, assign, pledge,
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hypothecate or otherwise dispose of any of the Preference Stock, the Conversion
Shares, or any securities issued or issuable with respect to any of the
Preference Stock or Conversion Shares by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise (including without limitation
in connection with any exchange offers by Parent, Subsidiary or any successor to
or Affiliate of either of them) or any securities issued pursuant to Section
6(iii)(d)(II) or 7 of the Certificate of Designations which the holders thereof
are entitled to receive, in each case except pursuant to a registration under
the Securities Act, pursuant to an exemption therefrom or in a transaction not
subject thereto, and, in any event, in compliance with all applicable state
securities or blue sky laws.
3.2 Financial Capability. Investor has sufficient immediately
available funds to purchase the shares of Preference Stock described in Section
2.1 and consummate the transactions contemplated by this Agreement.
3.3 Corporate Existence. Investor is (i) a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and (ii) is duly qualified as a foreign corporation and in good standing under
the laws of each jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification (except for jurisdictions in
which such failure to so qualify or to be in good standing could not reasonably
be expected to have a Material Adverse Effect on Investor).
3.4 Corporate Power; Authorization; Enforceable Obligations. The
execution, delivery and performance by Investor of this Agreement and the other
Transaction Documents: (i) are within Investor's corporate power; (ii) have been
duly authorized by all necessary corporate action; (iii) are not in
contravention of any provision of Investor's certificate of incorporation or by-
laws; (iv) will not violate, any law or regulation, or any order or decree of
any Governmental Authority binding on Investor, except as would not have a
Material Adverse Effect on Investor; (v) will not conflict with in any material
respect, or result in the material breach or termination of, constitute a
material default under or accelerate any performance required by, any material
lease, agreement, contract, bond, indenture, note or other instrument to which
Investor or any of its subsidiaries is a party or by which Investor, any of its
subsidiaries or any of their property is bound; and (vi) do not require the
consent or approval of, or any filing with, any Governmental Authority or any
other Person (except for the filing and expiration of applicable waiting period
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, in
connection with any issuance of Common Stock or other voting securities upon
conversion, redemption or exchange of Preference Stock or other voting
securities issued pursuant to or in respect of the Preference Stock or any
securities for or into which Preference Stock may be converted, exchanged or
redeemed). This Agreement and the other Transaction Documents have been duly
executed and delivered by Investor and constitute the valid and binding
obligations of Investor, enforceable against it in accordance with their
respective terms, except to the extent enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and subject to
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general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
3.5 Brokers. Except for Bear Xxxxxxx & Co. Inc., whose fees will be
paid by Investor, there is no investment banker, broker, lender or other
intermediary which has been retained by or is authorized to act on behalf of
Investor or any of its subsidiaries who might be entitled to any fee or
commission in connection with the transactions contemplated by this Agreement.
IV. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY
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Parent and Subsidiary jointly and severally make the following
representations and warranties to Investor as of the date hereof:
4.1 Authorized and Outstanding Shares of Capital Stock. As of June 16,
1999, (a) 600,000,000 shares of Common Stock were authorized and 112,322,973
shares of Common Stock were issued and outstanding, (b) 2,000,000,000 shares of
common stock, par value $1-2/3 per share, of Parent (the "$1-2/3 Common Stock")
were authorized and 647,303,620 shares of $1-2/3 Common Stock were issued and
outstanding, (c) 6,000,000 shares of preferred stock, without par value, were
authorized and no shares were issued and outstanding and (d) 100,000,000 shares
of preference stock, $0.10 par value, were authorized and 753,663 shares were
issued and outstanding and designated as Series D 7.92% Preference Stock,
represented by 3,014,654 depositary shares and 1,253,852 shares were issued and
outstanding and designated as Series G 9.12% Preference Stock, represented by
5,015,410 depositary shares. All of the issued and outstanding shares of Common
Stock, $1-2/3 Common Stock and preference stock referred to above have been
validly issued, and are fully paid, nonassessable and free of preemptive rights.
Except for (x) up to 20,121,514 shares of Common Stock issuable in connection
with the Agreement and Plan of Merger, dated as of December 11, 1998, among
Parent, Subsidiary and United States Satellite Broadcasting Company, Inc. and
(y) shares of Common Stock reserved for issuance and issuable upon or otherwise
deliverable in connection with the exercise of outstanding options to purchase
Common Stock granted by Parent or Subsidiary pursuant to any employee benefit
plan of Parent or Subsidiary, as of the date hereof, there are outstanding (A)
no securities of Parent or its subsidiaries convertible into or exchangeable for
shares of Common Stock and (B) no options or other rights to acquire from Parent
or its subsidiaries, and no obligations of Parent or its subsidiaries to issue,
any Common Stock, or securities convertible into or exchangeable for Common
Stock. There are no outstanding obligations of Parent or any of its subsidiaries
to repurchase, redeem or otherwise acquire any Common Stock.
4.2 Authorization and Issuance of Preference Stock. On the Share
Delivery Date, the issuance of the shares of Preference Stock to Investor
pursuant to this Agreement will be duly authorized by all necessary corporate
action on the part of Parent, and upon delivery to Investor of the certificates
(or other evidence of ownership) representing the Preference Stock against
payment in accordance with the terms hereof, such Preference Stock will have
been validly issued, fully paid and non-assessable, free
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and clear of all Liens (other than any arising from the ownership thereof by
Investor). On the Share Delivery Date, the issuance of the Conversion Shares
will be duly authorized by all necessary corporate action on the part of Parent
and, when issued upon conversion of such Preference Stock in accordance with the
Certificate of Designations, such Conversion Shares will have been validly
issued, fully paid and non-assessable. As of the Share Delivery Date, Parent
will have reserved the shares of Common Stock for issuance upon conversion of
the Preference Stock.
4.3 Securities Laws. The offer, issuance, sale and delivery of the
Preference Stock, as provided in this Agreement and assuming that the
representations and warranties of Investor contained herein are true and
correct, are exempt from the registration requirements of the Securities Act.
Neither Parent nor any Person acting on its behalf has taken or will take any
action (including, without limitation, any offering of any securities of Parent
under circumstances which would require the integration of such offering with
the offering of the Preference Stock under the Securities Act) which would
subject the offering, issuance or sale of the Preference Stock to the
registration requirements of the Securities Act.
4.4 Corporate Existence; Compliance with Law. Each of Parent and
Subsidiary (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware; (ii) is duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction
where its ownership or lease of property or the conduct of its business requires
such qualification (except for jurisdictions in which such failure to so qualify
or to be in good standing could not reasonably be expected to have a Material
Adverse Effect on Parent or Subsidiary); and (iii) has the requisite corporate
power and authority and the legal right to own, pledge, mortgage or otherwise
encumber and operate its properties, to lease the property it operates under
lease, and to conduct its business as now being conducted.
4.5 Corporate Power; Authorization; Enforceable Obligations. The
execution, delivery and performance by Parent and Subsidiary of this Agreement
and the other Transaction Documents to which either is a party, and the issuance
and sale of the Preference Stock pursuant hereto: (i) are within Parent's or
Subsidiary's corporate power, as applicable; (ii) have been duly authorized by
all necessary corporate action (other than the authorization of the shares of
Preference Stock, which will be authorized prior to the Share Delivery Date);
(iii) are not in contravention of any provision of Parent's or Subsidiary's
certificate of incorporation or by-laws; (iv) will not violate any law,
regulation, order or decree of any Governmental Authority binding on Parent or
its subsidiaries, except as would not have a Material Adverse Effect on Parent
or Subsidiary; (v) will not conflict with in any material respect, or result in
the material breach or termination of, constitute a material default under or
accelerate any performance required by, any material lease, agreement, contract,
bond, indenture, note or other instrument to which Parent or any of its
subsidiaries is a party or by which Parent, any of its subsidiaries or any of
their property is bound; and (vi) do not require the consent or approval of, or
any filing with, any Governmental Authority or any other Person (except (A) for
the filing of an amendment to Parent's Restated Certificate of Incorporation, as
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amended, to authorize the Preference Stock, substantially in the form of the
Certificate of Designations, (B) for the filing and expiration of applicable
waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, in connection with any issuance of Common Stock or other voting
securities upon conversion, redemption or exchange of Preference Stock or other
voting securities issued pursuant to or in respect of the Preference Stock or
any securities for or into which Preference Stock may be converted, exchanged or
redeemed, and (C) to the extent previously obtained or made). This Agreement and
the other Transaction Documents to which either is a party have been duly
executed and delivered by Parent and Subsidiary and constitute and will
constitute the valid and binding obligations of Parent and Subsidiary,
enforceable against Parent and Subsidiary, as applicable, in accordance with
their respective terms, except to the extent enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights in general and subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law). There are no corporate or other actions, consents or
approvals of the Parent or any of its subsidiaries required for, and there are
no outstanding restrictions or other impediments to, the Master Agreement and
the Venture Agreements constituting the valid and binding obligation of the
subsidiary of Parent that is party thereto, enforceable against it in accordance
with its terms, except to the extent enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.6 SEC Filings; Financial Statements. Parent has filed with the SEC
all reports required under Sections 12, 13 or 15(d) of the Exchange Act since
January 1, 1998 (the "SEC Documents"), each of which has complied in all
material respects with all applicable requirements of the Exchange Act, as in
effect on the dates such reports were filed. None of the SEC Documents,
including, without limitation, any financial statements or schedules included or
incorporated by reference therein, contained, when filed, any untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. The consolidated financial statements of Parent
included in the SEC Documents complied, at the time filed, as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto and fairly present, in
conformity with GAAP (except, as may be indicated in the notes thereto) the
consolidated financial position of Parent and its consolidated subsidiaries as
of the respective dates thereof and their consolidated results of operations and
changes in financial position for the respective periods then ended (subject, in
the case of the interim unaudited financial statements, to normal year-end audit
adjustments).
4.7 No Material Adverse Change. Except as described in the SEC
Documents or as disclosed to Investor, there has not been, since March 31, 1999,
any event or events which, alone or collectively, have had a Material Adverse
Effect on
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Parent, and the information contained in the SEC Documents, together with and as
supplemented by the information so disclosed to Investor, does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein not misleading in the light of
the circumstances currently prevailing.
4.8 Brokers. Except for Xxxxxxx, Xxxxx & Co., whose fees will be paid
by Parent or Subsidiary, there is no investment banker, broker, finder or other
intermediary which has been retained by or is authorized to act on behalf of
Parent or any of its subsidiaries who might be entitled to any fee or commission
in connection with the transactions contemplated by this Agreement.
V. COVENANTS
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5.1 Additional Agreements; Commercially Reasonable Efforts. Subject to
the terms and conditions herein provided, each of the parties hereto agrees to
use its commercially reasonable efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things reasonably necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, including, without
limitation, (i) cooperation in obtaining, the approval for listing on the NYSE,
effective upon the official notice of issuance, of the Conversion Shares (other
than treasury shares for which listing on the NYSE has already been approved),
(ii) the taking of all action reasonably necessary, proper or advisable to
secure any necessary consents of all third parties and Governmental Entities
(including, without limitation, the filing of any notifications or other
materials required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, with respect to the issuance of any voting securities pursuant
to the Certificate of Designations) and (iii) the execution of any additional
instruments reasonably requested as necessary to consummate the transactions
contemplated hereby.
5.2 Public Announcements. Prior to the Share Delivery Date, each party
hereto will agree on the text of any press release before issuing any press
release or otherwise making any public statements with respect to the
transactions contemplated by this Agreement, and none of such parties shall
issue any such press release or make any such public statement prior to such
agreement, except as may be required by applicable law or by obligations
pursuant to any agreement with the NYSE, as determined by such party, in which
case such release or statement shall be limited to a factual summary of the
material provisions of this Agreement and the transaction contemplated hereby.
Notwithstanding the foregoing, each of the parties hereto may, in documents
required to be filed by it with the SEC or other regulatory bodies, make such
disclosure with respect to the transactions contemplated hereby as each may be
advised by counsel is required by law, provided that such party shall give the
other party reasonable opportunity to comment upon such disclosure.
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5.3 Transfers of Shares.
(a) General Restrictions.
(i) Subject to Section 5.3(c) below, prior to the third
anniversary hereof, Investor may not effect any transfer, sale, assignment,
mortgage, pledge, hypothecation, gift, placement in trust (voting or
otherwise) or other disposition (other than a transfer by operation of law
or merger as part of a sale or consolidation of Investor to an unaffiliated
third party, so long as the requirements of this Section 5.3 bind the
successor-in-interest to such transfer by operation of law or merger to the
same extent as they bind Investor) (any of which being a "Transfer"), all
or any part of the shares of Preference Stock issued pursuant to this
Agreement, or the Conversion Shares and any securities issued or issuable
with respect to any of the Preference Stock or Conversion Shares by way of
stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise (including without limitation in connection with any exchange
offers by Parent, Subsidiary or any successor to or Affiliate of either of
them or any securities issued pursuant to Sections 6(iii)(d)(II) or 7 of
the Certificate of Designation) which the holders thereof are entitled to
receive, or any securities purchased pursuant to Section 5.5 hereof
(collectively, the "Restricted Shares"), except a Transfer to any wholly
owned subsidiary of Investor in compliance with applicable law or to an
unaffiliated third party as part of a sale of all or substantially all of
the assets of Investor to such unaffiliated third party (each, a "Permitted
Transferee"). Any purported Transfer or purported purchase or sale of any
Restricted Shares or a portion thereof in violation of the terms of this
Agreement shall be null and void and of no effect. Prior to selling or
transferring any capital stock of or other interest in any Permitted
Transferee or permitting any other Person to acquire any capital stock of
or other interest in any Permitted Transferee, Investor shall cause any
Restricted Shares previously transferred to such Permitted Transferee to be
transferred back to Investor or to any other Permitted Transferee, which
Permitted Transferee shall be subject to all requirements of this Section
5.3, including without limitation Section 5.3(a)(ii) below.
(ii) In the event of a Transfer to any Permitted Transferee, such
Permitted Transferee shall be bound and obligated by, and shall be entitled
to the rights and benefits afforded to Investor under the terms and
provisions of, this Agreement. As a condition precedent to any such
Transfer, such Permitted Transferee shall agree in writing in a form
acceptable to Parent to be bound by all of the provisions and conditions of
this Agreement, and no such Permitted Transferee shall be permitted to
effect any Transfer of Restricted Shares which Investor is not permitted to
make under this Agreement.
(b) Notice of Proposed Transfer; Opinions of Counsel. Prior to any
Transfer of any Restricted Shares to a Permitted Transferee as contemplated
in Section 5.3(a), which Restricted Shares are not registered under an
effective registration statement under the Securities Act, the holder
thereof will give written notice to Parent of such holder's intention to
effect such Transfer and to comply in all other respects with
11
this Section 5.3(b). Each such notice shall describe the manner and
circumstances of the proposed Transfer and, if requested by Parent, shall be
accompanied by an opinion of counsel for such holder, which counsel and opinion
shall each be reasonably satisfactory to Parent, that the proposed transfer may
be effected without registration of such Restricted Shares under the Securities
Act. Such holder shall thereupon be entitled to Transfer such Restricted Shares
in accordance with the terms of the notice delivered by such holder to Parent.
Each certificate representing such Restricted Shares issued upon or in
connection with such Transfer shall bear the restrictive legend required by
Section 5.4, unless the related restrictions on Transfer shall have ceased and
terminated pursuant to Section 5.3(c) hereof.
(c) Termination of Restrictions. After the earlier of (i) the third
anniversary hereof; (ii) the occurrence of an Optional Conversion (as defined in
the Certificate of Designations) of Preference Stock into Common Stock effected
within 10 days after Parent gives notice of a DTV Sale (as defined in the
Certificate of Designations) pursuant to Section 6(iv)(c) of the Certificate of
Designations (a "DTV Conversion Event"); and (iii) either (A) the termination of
all three of the Clause I Thru III Agreements by Investor in accordance with the
terms of those agreements and the Master Agreement solely on the basis of a
material breach thereof or material default thereunder by Parent or a subsidiary
thereof and, in addition, the termination of the Clause VII Agreement in
accordance with the terms thereof based on such termination of the Clause I Thru
III Agreements or (B) the termination of all three of the Clause I Thru III
Agreements by the subsidiary of Parent which is party thereto in accordance with
the terms of those agreements and the Master Agreement solely on the basis of a
material breach or material default thereunder by Investor and, in addition, the
termination of all of the other Venture Agreements by such a subsidiary in
accordance with the terms thereof based on such termination of the Clause I Thru
III Agreements (a "Termination Event"), the restrictions imposed by Sections
5.3(a) and 5.3(b) shall terminate and be of no further force or effect (it being
understood that the provisions of Section 5.3(d) shall continue until the first
anniversary of such termination). In addition, following a DTV Sale, the
restrictions imposed by Sections 5.3(a) and 5.3(b) shall terminate and be of no
further force or effect (it being understood that the provisions of Section
5.3(d) shall continue until the first anniversary of such termination) with
respect to any shares of Common Stock issued upon an Optional Conversion of
Preference Stock; provided that Section 5.6(d) shall apply to the proceeds of
any Transfer of such shares of Common Stock. The restrictive legend required by
Section 5.4 shall remain on any Restricted Shares to be Transferred unless and
until Parent receives an opinion of counsel for Investor, which opinion and
counsel shall be reasonably satisfactory to Parent, that the proposed Transfer
may be effected without registration of such Restricted Shares under the
Securities Act and that such legend may be removed. If such an opinion is
delivered to Parent, the legend shall be removed.
(d) Transfers During Underwritten Offerings. Investor covenants to
Parent that Investor, in connection with any underwritten offering of Common
Stock or a security convertible into or exchangeable or exercisable for Common
Stock occurring
12
before the first anniversary of the termination of transfer restrictions
pursuant to Section 5.3(c), will sign a customary "lock-up" agreement
restricting the Transfer of the Restricted Shares held by it or by a Permitted
Transferee of the Preference Stock during the pendency of such offering and for
a period of ninety (90) days following the completion of such offering; provided
that such Investor shall not be required to agree to any transfer restrictions
(i) if such underwritten offering shall be on behalf of other stockholders and
no agreement existing on the date hereof shall require such "lock-up"
restrictions or (ii) to the extent such restrictions on Transfer are more
burdensome than those to which Parent agrees in connection with such offering.
5.4 Restrictive Legends. Except as otherwise provided by Section
5.3(c), each certificate for Restricted Shares shall be stamped or otherwise
imprinted with a legend in substantially the following form:
The shares represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be transferred in the absence of such registration or any exemption
therefrom under such Act, and in compliance with all applicable state
securities or blue sky laws. In addition, such shares may be
transferred only in compliance with the conditions specified in the
Purchase Agreement dated as of June 21, 1999 by and among General
Motors Corporation, Xxxxxx Electronics Corporation and America Online,
Inc. A complete and correct copy of such Purchase Agreement is
available for inspection at the principal office Xxxxxx Electronics
Corporation, and will be furnished without charge to the holder of
such shares upon written request.
5.5 Purchase Rights. In the event of a Public Offering of shares of
common stock of DTV (other than pursuant to a registration under the Securities
Act on Form X-0, Xxxx X-0 or otherwise in connection with an acquisition
transaction or an offering limited to employees, directors and/or consultants of
DTV or its Affiliates), Parent will make available for purchase by Investor, on
a direct placement basis but otherwise on the same terms as such shares are to
be sold by Parent in such Public Offering (except that Investor shall not be
required to bear the underwriters' discount), if Investor so requests in the
manner hereinafter provided. Investor may so request of Parent by giving Parent
notice of its election to purchase such shares in the Public Offering (which
notice shall be given not later than ten (10) Business Days following notice
given by Parent to Investor of such proposed Public Offering) a number of the
shares of common stock of DTV to be sold in such Public Offering (excluding any
shares subject to an overallotment option given to the underwriters) equal to
the product obtained by multiplying the number of the shares of common stock of
DTV to be sold in such Public Offering (excluding any shares to be purchased by
Investor pursuant to this Section 5.5) by the percentage obtained by dividing
(i) the number of shares of Common Stock into which any shares of Preference
Stock held of record by Investor as of the date
13
of such notice from Investor could be optionally converted as of such date by
(ii) the sum obtained by adding the Class H Dividend Base as of the date of such
notice plus the number of shares of Common Stock into which any shares of
Preference Stock held of record by Investor as of the date of such notice could
be optionally converted as of such date. Notwithstanding any notice provided by
Parent pursuant to this Section 5.5, Parent shall be free at any and all times
to cease, or delay the timing of, any Public Offering contemplated herein. The
provisions of this Section 5.5 shall only be applicable during such time as (i)
there shall be any issued and outstanding shares of Preference Stock and (ii)
DTV is an Affiliate of Parent. At such time as all shares of Preference Stock
shall be converted, redeemed, canceled or otherwise cease to be outstanding,
this Section 5.5 shall be void and of no further force or effect.
5.6 Market Valuation Protection in Event of Certain Conversions.
(a) All shares of Common Stock issued to Investor pursuant to a DTV
Conversion Event (the "DTV Conversion Shares") shall be sold within 120 days
following a DTV Conversion Event. Parent shall have the right to direct the sale
by Investor of the DTV Conversion Shares, including pursuant to an underwritten
public offering. Subject to the following sentence, Parent shall have the right
to direct that such sale(s) of such shares be made by Investor to any Person(s),
including Affiliates of Parent, and Parent shall have the right to (but shall
not be obligated to) itself purchase all or any portion of such shares. Parent
may direct that such sale(s) be made on such terms as are acceptable to Parent;
provided that Parent shall not direct the sale of any of such shares to an
Affiliate of Parent, or purchase any such shares itself, for per share
consideration less than the Fair Market Value as of the proposed date of such
sale or purchase. Investor and Parent shall cooperate with each other in all
respects in order to effectuate any such sale in a commercially reasonable
manner. Parent shall consult with Investor as to the manner of such sales and
the proposed purchasers of such DTV Conversion Shares; provided that Parent
shall retain the ultimate discretion with respect to the determination of all
such matters.
(b) If the aggregate proceeds payable to Investor from the sales of
all of the DTV Conversion Shares (the "Liquidation Proceeds") are less than the
aggregate liquidation preference of the shares of Preference Stock from which
such DTV Conversion Shares were converted (the "Break-Even Amount"), Parent
shall pay an amount of cash to Investor equal to the difference obtained by
subtracting the Liquidation Proceeds from the Break-Even Amount. If the
Liquidation Proceeds exceed the Break-Even Amount (such excess referred to
herein as the "Excess Amount"), Investor shall be entitled to a portion of the
Liquidation Proceeds equal to the sum of the Break-Even Amount plus 60% of the
Excess Amount, and Parent shall be entitled to a portion of the Liquidation
Proceeds equal to, and Investor shall pay to Parent an amount of cash equal to,
40% of the Excess Amount. Any payments required under this paragraph shall be
made promptly after sale of any DTV Conversion Shares.
(c) From and after a DTV Conversion Event and until all DTV
Conversion Shares have been sold and Investor has been paid all amounts (if any)
due to
14
Investor pursuant to Section 5.6(b) above, Parent shall continue to
pay to Investor an amount equal to Preferential Dividends (as defined
in the Certificate of Designations) that would otherwise be payable in
accordance with the terms of the Certificate of Designations as if the
shares of Preference Stock converted into DTV Conversion Shares in
connection with such DTV Conversion were still outstanding during such
period; provided, however, that for this purpose the number of shares
of Preference Stock that shall be deemed to remain outstanding during
such period shall be reduced by the quotient obtained by dividing the
amount of Liquidation Proceeds and other amounts remitted or paid to
Investor pursuant to Section 5.6(b) above by the liquidation
preference of a Series H Preference Share (as in effect immediately
prior to the conversion thereof), and such Series H Preference Shares
shall not be considered outstanding for this purpose as and when such
Liquidation Proceeds and other amounts are so remitted or paid.
(d) Within ten days after any Transfer by Investor or a
Permitted Transferee of shares of Common Stock issued to Investor
pursuant to any Optional Conversion effected at any time after a DTV
Sale (other than DTV Conversion Shares, the proceeds from the sale of
which are governed by paragraphs (a), (b) and (c) above) ("Post-DTV
Conversion Shares"), Investor shall deliver to Parent (i) a notice
indicating the number of Post-DTV Conversion Shares Transferred (other
than to Permitted Transferees) and the aggregate consideration paid or
payable to Investor (or any Affiliate thereof) as a result of such
Transfer (other than the portion (if any) of such consideration
allocable to a Transfer to a Permitted Transferee) ("Post-DTV Sale
Proceeds") and (ii) an amount of cash equal to 40% of the excess (if
any) of the Post-DTV Sale Proceeds over the aggregate liquidation
preference of the shares of Preference Stock from which such Post-DTV
Conversion Shares (other than those Transferred to Permitted
Transferees) were converted. Notwithstanding the foregoing, Investor
shall not sell or otherwise Transfer any such shares to an Affiliate
of Investor for per share consideration less than the Fair Market
Value as of the proposed date of such sale.
(e) Investor shall consult with Parent as to the manner of sales
and other dispositions of Post-DTV Conversion Shares and the proposed
purchasers thereof; provided that Investor shall retain the ultimate
discretion with respect to the determination of all such matters.
(f) Promptly following the earlier of (x) the date of which
Investor and its Permitted Transferees no longer own any Restricted
Shares and (y) the Mandatory Conversion Date, Investor shall deliver
to Parent a report indicating (i) the aggregate number of Post-DTV
Conversion Shares that Investor and its Permitted Transferees shall
have Transferred at any time prior to such date (other than to
Permitted Transferees) (the "Transferred Post-DTV Conversion Shares")
and (ii) the aggregate Post-DTV Sale Proceeds resulting from such
Transfers (the "Aggregate Post-DTV Sale Proceeds"). In the event that
(w) 40% of the excess of the Aggregate Post-DTV Sale Proceeds over the
aggregate liquidation preference of the shares of Preference Stock
from which the Transferred Post-DTV Conversion Shares were converted
exceeds (x) the aggregate amount of cash paid to Parent pursuant to
Section 5.6(d) above (the amount of such excess referred to herein as
the "Underpayment Amount"), Investor shall promptly pay
15
Parent an amount of cash equal to the Underpayment Amount. In the event that (y)
the sum of the aggregate amount of cash paid to Parent pursuant to Section
5.6(d) above exceeds (z) 40% of the excess of the Aggregate Post-DTV Sale
Proceeds over the aggregate liquidation preference of the shares of Preference
Stock from which the Transferred Post-DTV Conversion Shares were converted (the
amount of such excess referred to herein as the "Overpayment Amount"), Parent
shall promptly pay Investor an amount of cash equal to the Overpayment Amount.
VI. MISCELLANEOUS
-------------
6.1 Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by another, or whenever any of the
parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or by registered or certified
mail, return receipt requested, postage prepaid, or by telecopy and confirmed by
telecopy answerback addressed as follows:
If to Parent or Subsidiary: General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
and
Xxxxxx Electronics Corporation
000 X. Xxxxxxxxx Xxxx
Xx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
If to Investor: America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile: 000-000-0000
16
with a copy to: Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Facsimile: 212-848-7179
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback, or
three (3) Business Days after the same shall have been deposited with the United
States mail, first-class postage prepaid.
6.2 Binding Effect; Assignability; Benefits. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns (including, without limitation,
Permitted Transferees). Neither this Agreement nor any right, remedy, obligation
or liability arising hereunder or by reason hereof shall be assignable by any
party without the prior written consent of the other parties hereto. Nothing in
this Agreement, express or implied, is intended or shall be construed to give
any Person other than the parties to this Agreement or their respective
successors or assigns any legal or equitable right, remedy or claim under or in
respect of any provision contained herein.
6.3 Amendment. No amendment or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by
the parties thereto and such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. The waiver by
any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any preceding or succeeding breach and no
failure by either party to exercise any right or privilege hereunder shall be
deemed a waiver of such party's rights or privileges hereunder or shall be
deemed a waiver of such party's rights to exercise the same at any subsequent
time or times hereunder.
6.4 Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
6.5 Severability. In the event that any one or more of the provisions
contained in this Agreement shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision or provisions in every other respect and
the remaining provisions of this Agreement shall not be in any way impaired.
6.6 Interpretation. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or
17
interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
6.8 Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of Delaware without giving
effect to the conflict of laws provisions thereof. Each of the parties hereby
submits to personal jurisdiction and waives any objection as to venue in the
County of Wilmington, State of Delaware. Service of process on the parties in
any action arising out of or relating to this Agreement shall be effective if
mailed to the parties in accordance with Section 6.1 hereof.
6.9 Expenses. Each party hereto shall pay its own costs and expenses
in connection with this Agreement and the transactions contemplated hereby.
6.10 Confidentiality. Each party acknowledges that Confidential
Information has been disclosed prior to the date hereof to certain other parties
and may be disclosed in the future among the parties during the course of the
transactions contemplated by the Transaction Documents. Each party agrees that
it will take reasonable steps, at least substantially equivalent to the steps it
takes to protect its own proprietary information, during the term of each of the
Transaction Documents, and for a period of three years thereafter following the
expiration or termination of each such Transaction Document, to prevent the
duplication or disclosure of Confidential Information of any other party, other
than by or to its employees or agents who must have access to such Confidential
Information to perform such party's obligations under any of the Transaction
Documents and who will each agree to comply with this section. Notwithstanding
the foregoing, any party may issue a disclosure containing Confidential
Information without the consent of the other parties, to the extent such
disclosure is required by law, rule, regulation or government or court order. In
such event, the disclosing party will provide at least five (5) business days
prior written notice of such proposed disclosure to the party whose Confidential
Information is being disclosed, and upon the request of the latter shall fully
cooperate with that party in contesting such disclosure. If after such contest
disclosure is still required, then the disclosing party shall reasonably seek
confidential treatment of the Confidential Information from the authority
requiring disclosure. Upon the expiration or termination of this Agreement, each
party will, upon the written request of the other parties, return or destroy (at
the option of the party receiving the request) all Confidential Information,
documents, manuals and other materials specified by the requesting party.
Subject to each party's obligation to protect and return or destroy each other
party's Confidential Information set forth herein, nothing in this Section will
be construed as a representation or agreement to restrict reassignment of any
party's employees, or in any manner to affect or limit any party's present and
future business activities of any nature, including business activities which
could be
18
competitive with the disclosing party. Except as expressly set forth in any
Transaction Document, nothing herein or in any Transaction Document shall
prohibit the disclosing party from pursuing a transaction similar to the one
contemplated by any of the Transaction Documents independently or with any other
third party.
6.11 Entire Agreement. This Agreement and the exhibits hereto and the
Registration Rights Agreement embody the entire agreement and understanding
between the Parent and each other party hereto relating to the subject matter
hereof and supersedes all prior agreements and understanding relating to the
subject matter. In the event that any provision of this Agreement is found to be
inconsistent with the provisions of the Master Agreement, the provisions of this
Agreement shall control.
19
IN WITNESS WHEREOF, Parent, Subsidiary and Investor have executed this
Agreement on the day and year first above written.
GENERAL MOTORS CORPORATION
By: /s/ X.X. Xxxx
--------------------------------------------
Name: X.X. Xxxx
Title: Exec. V.P. & CFO
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Corporate Senior Vice President
and Chief Financial Officer
AMERICA ONLINE, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President, Business Affairs
20
